Nidus News

Unfortunately, some people may misuse legal documents for their own benefit. Even though a person must meet the traditional definition of capacity to create an Enduring Power of Attorney and understand its “nature and effect” when they sign it, the document can still be abused. Both civil and criminal law exist to deal with this problem.  

In Canada, it is a crime to use a Power of Attorney to take or misuse someone else’s money. A person found guilty can go to prison for up to 10 years. In all likelihood, a section 7 representation agreement (an RA7) that includes authorities for legal affairs and/or routine financial management is also covered by these sections of the Criminal Code. The Ontario case R v Ehrhardt, 2025 ONSC 6850, is about a man who was found guilty of stealing almost $83,000 while acting under a Power of Attorney. 

In this case, Mr. Ehrhardt met his partner, Ms. Driscoll, in 2007. She made a Power of Attorney appointing him in 2014. She was also diagnosed with Alzheimer’s disease that year and later moved into long-term care in 2015. The Power of Attorney was cancelled by a court in 2017, and Ms. Driscoll passed away later that year. The crimes happened during the last two years of her life. 

The judge strongly criticized Mr. Ehrhardt. The court said he broke Ms. Driscoll’s trust and his legal duties as her attorney, and used her money as if it were his own. The judge also said he took advantage of her while she was vulnerable due to her declining health. 

Evidence showed that after declaring his own personal bankruptcy in 2015, Mr. Ehrhardt moved at least $75,000 from Ms. Driscoll’s accounts into his own, while only about $4,000 went the other way. He also opened a credit card in her name and spent money without clear benefit to her. 

The Crown prosecutor asked for a prison sentence of 12 to 18 months, along with repayment of $148,000. The defence argued for a sentence to be served in the community and no repayment. 

When deciding the sentence, the court looked at the Criminal Code’s purposes and principles of sentencing including reprimanding the actions of and harm done by the offender, preventing future crimes, protecting the public, rehabilitating the offender, repairing the harm done, and developing responsibility/accountability in the offender. The sentence must also match the seriousness of the crime and the offender’s level of involvement, and it must be like other sentences in similar cases. 

The court noted several factors that made Mr. Ehrhardt’s actions particularly bad. He had problems following court orders and rules regarding his past bankruptcy and during this case. He missed court dates, caused delays, and tried to avoid responsibility. When he spoke in court, he did not accept blame for his actions. The judge believed he was unlikely to change. The court confirmed several other serious “aggravating” factors in his actions: 

• he had abused a position of trust;  

• the victim (Ms. Driscoll) was vulnerable; 

• his actions towards her were controlling and harmful and amounted to “intimate partner violence” at law;  

• he knew what he was doing was wrong and did it anyway (he had “fraudulent intent”); and  

• he tried to hide what he had done.  

The defence argued that his age and health should reduce his sentence, but the court did not find these reasons convincing. 

The court decided that Mr. Ehrhardt must repay approx. $82,500, which had clearly been used only for his own benefit. This was ordered even though there were also civil claims against him that were ongoing. He was also sentenced to one year in prison and ordered to repay the money within two years. 

It is wrong and disheartening that personal planning documents can be misused by the person(s) appointed. Unfortunately, this can happen even if the document requires the traditional definition of capacity to be made.  

The good news is that the great majority of personal planning documents are used responsibly, for the purposes they are intended and within the duties at law. In addition, with RA7s, there are extra safeguards built into the law to try and avoid this occurring from the start. Nevertheless, R v Ehrhardt is a reminder that there are civil legal rules (discussed in our previous article) and criminal legal rules (discussed above) to deal with bad actors.  

In the October edition of our newsletter, we addressed issues reported by representatives when applying on an adult’s behalf for the Canada Disability Benefit (CDB) with a Section 7 Representation Agreement (RA7). The CDB is a new federal benefit for low-income Canadians with disabilities – read more about the CDB at this website managed by one of our community partners, Plan Institute. Valid RA7s that include authority for routine finances should be accepted for a CDB application. 

If you are experiencing issues with using an RA7 for a CDB application, you may follow this process with Service Canada:

1. Request to have your file reviewed by someone else;
2. Request an escalation; then
3. Once a decision has been made, submit a request for reconsideration.

If you have followed the above steps and/or made a request for reconsideration and still face issues with an RA7 being used for a CDB application, please reach out to us at info@nidus.ca.

For questions about the CDB generally, Plan Institute offers a helpline at 1-844-311-7526.

A recent court case, Vancouver Island Health Authority v T.W., 2025 BCSC 2505, centred around a woman in her 70s who had received an Alzheimer’s diagnosis while living in the Vancouver Island Health Authority (“IH”) region. A year into her diagnosis, she made a Section 9 Representation Agreement (RA9) with her husband as representative, and her daughter as an alternate representative. 

Background: Alzheimer’s, MAiD, and the “Death Plan”

Two years after her diagnosis with Alzheimer’s, the woman was assessed as eligible for Medical Assistance in Dying (MAiD), but the following year, she both stated she did not want MAiD, and was also deemed no longer eligible due to the progression of her dementia. Her husband overtly and repeatedly told family, friends and health care personnel that if his wife became ineligible for MAiD, he intended to end her life and then take his own life. This was referred to in the case as the “Death Plan”. It was determined that the wife never agreed to the Death Plan and was upset by it. The Death Plan was never legal under the Canadian MAiD regime.  IH is a designated agency under Part 3 of the Adult Guardianship Act (AGA), which gives them certain obligations regarding the protection of vulnerable adults from abuse and neglect, including self-neglect. IH undertook an investigation in this case due to several concerns, including about the Death Plan. IH determined there was imminent risk of death or grievous bodily injury. Using its emergency powers under s. 59 of the AGA, IH removed the woman from the joint residence where she and her husband resided to a nearby hospital.   IH prepared a support and assistance plan that included admission to a long-term care facility. Because the woman was assessed as unable to consent, and the first person in line who could give or refuse consent (RA9 rep – the husband) refused, IH was of the view that the only option forward to ensure the woman’s safety was to apply to the Provincial Court for a Support and Assistance Order (SAO) under the AGA because of concerns about the self-neglect. An SAO can include an order for admission to an available care facility, hospital, or other facility for up to one year.  While the SAO was sought and renewed for a second year, IH also filed objections with the Public Guardian and Trustee for BC (PGT) regarding the husband’s fulfilment of his duties and obligations as a representative. The PGT recommended that IH consider seeking relief from the Court to address any future concerns that might arise, leading to the case at hand.   The Court in this case noted that the AGA does not provide a mechanism for a viable long-term solution that would protect the wife from undue risk of harm. The PGT had declined to pursue a committeeship as well. 

The RAA Application and Legal Framework

IH sought the following from the Court under section 30 of the Representation Agreement
Act (RAA): declarations that the husband is not a suitable representative, not qualified to be a Temporary Substitute Decision Maker, not qualified to provide substitute consent for admission to a care facility, and for an order changing the 2020 RA9 to remove the husband as a representative, to authorize the daughter to act as representative instead of the husband, and to add a granddaughter as an alternate representative if the daughter can no longer act. In making their decision, the court reviewed the duties and obligations of representatives, including the ethical decision-making process which is focused on the adult’s wishes, beliefs, and values, before best interests. The Court also reviewed the objection process under the RAA, as well as the Court’s powers to make an order confirming a change to or cancelling all or part of a Representation Agreement.   The Court cited another Supreme Court of BC case, (Stockall (Re), 2023 BCSC 437) which used factors from an earlier case (Stewart (Re), 2014 BCSC 2321) which had to do with selecting an appropriate committee. In Stockall, two individuals were both representatives and attorneys under a Representation Agreement and an Enduring Power of Attorney. They each sought to have each other removed, and these factors were considered in deciding which person should remain as the adult’s representative/attorney, and which person should be removed.   The non-exhaustive, non-prioritized factors include: 

• Does the change sought reflect the adult’s wishes, “obviously when he or she was capable of forming such a wish”? – para 76  
• Are immediate family members of the adult in agreement with the change?  
• Is there conflict between family members or between the family and the adult? Who would be likely to consult with immediate family members about the appropriate care of the adult?  
• Was the proposed representative previously involved with the patient? To what extent? (Usually family members are preferred.)  
• What is their level of understanding of the adult’s current situation? Will they be able to cope with future changes of the adult?  
• Will they provide love and support to the adult?  
• Who is the best person to deal with the financial affairs of the adult?  Will they ensure the income and estate are used for the adult benefit?  
• Has there been a breach of a fiduciary duty owed to the adult, or has there been  activity which diminishes confidence in that person’s abilities to properly handle the adult’s affairs?  
• Who is best to advocate for the patient’s medical needs?  
• Do they have an appropriate plan of care and management for the adult and the adult’s affairs and are they best able to carry it out?  
• Would a division of responsibilities such as between the adult’s financial and legal affairs (their “estate”) and the adult’s healthcare and personal care (their “person”) serve the best interests of the adult? Or would such a division be less than optimal?  

The inquiry is fact-specific, and a particular factor may or may not be applicable and may attract different weight depending on the circumstances of a case. The court also noted that the first factor, being the wishes expressed by the adult while mentally competent or lucid, is a significant factor in most cases – para 78. 

Applying Stockall Factors to this Case, and Finding Husband Unfit

The Court found that most of the factors weighed in favour of changing the wife’s RA9 to remove the husband and to make the daughter the representative, and the granddaughter the alternate representative. The husband was found to lack insight into his wife’s cognitive and physical decline, leading to him making inappropriate demands on her participation in physical activities and causing her emotional agitation. He also unlawfully delegated his authority (let other people make decisions for his wife) and engaged in several serious privacy breaches, including sharing private information and sealed court documents about his wife on the internet. The daughter had been appointed as an alternate representative in both Representation Agreements the wife had made. She also repeatedly asked her daughter in confidence to advocate for her after she could no longer do so herself, including in the context of the Death Plan, which the wife did not agree with. The court noted that the daughter had always tried to remain involved with her mother’s care to the extent her father allowed, visiting her regularly. The court also considered her background in health care and social work training and experience. It also noted her and the granddaughter’s understanding and acceptance of the wife’s diagnosis and prognosis, as well as ability to advocate for her needs. Other family members were in support of the change (aside from the husband). Despite everything, the daughter showed willingness to continue to consult with her father concerning her mother’s care.   

Takeaways/highlights from this case

1. Representatives have duties that are clearly outlined in the RAA; failure to follow these duties can result in removal by the BC Supreme Court – These duties include: to follow an ethical decision-making process that involves prioritizing the adult’s reasonable current wishes; not to delegate any authority given to them in the RA other than certain investment matters; and not to disclose any information or records obtained in the exercise of their authority except as needed to perform their duties or as otherwise legally required.  
2. Representatives under a valid Section 9 Representation Agreement are first in line to be able to provide consent for admission to a care facility, if the adult is determined to be incapable and there is no committee of person. Read more about Consent for Admission to a Care Facility in BC here.  
3. Medical Assistance in Dying is something that must be requested by the patient themselves. The patient must, among other requirements, be making the request voluntarily, and mentally capable of informed consent – understand what MAiD involves and its effect. Read more about MAiD here. 
4. Health Authorities may take action if they determine that an adult needs support and assistance, which can include an application for a support and assistance order (SAO) authorizing the provision of services to the adult, if the adult is incapable of deciding not to accept the services proposed in the plan. The adult’s representative, attorney or guardian must receive a copy of the application and are entitled to be heard at the hearing of the application.  
5. After an objection is made about a representative to the PGT, a court application can be made to remove or add a representative, and the court may do so, taking into consideration several factors, including the “Stockall Factors” 
   • Nidus suggests that in future cases involving Representation Agreements, the factors should be amended to note the differing principles behind Representation Agreements versus Adult Guardianship/Committeeship – RAs are based on principles of self-determination, while Committeeship is based on the idea of ‘best interests’ of the adult. Hence, in cases involving RAs, the factors should be adapted to prioritize the adult’s current wishes where they can be ascertained and are reasonable, consistent with the ethical decision-making framework under s. 16 of the RAA, and the legislative requirement under s.32(2).¹Section 32(3) of the RAA does open the door to a court making an order that overrides an adult’s wishes, instructions, values or beliefs if the adult is incapable, the order is in the adult’s best interests, and the court give reasons for making the order. However, along with a consideration of the overall intent of the legislature in establishing the RAA, this section should be read together with s. 32(2), which says the court must consider, in the same order of priority as under section 16 (2) to (4), the wishes, instructions, values and beliefs of the adult. In an RAA application, the adult has not necessarily been found incapable of managing themselves or their affairs by a court process – this contrasts with a committeeship situation. The RAA’s approach to capability is also different from the traditional view –stemming instead from its roots in grassroots law reform — to ensure that adults with cognitive difficulties have a legal alternative to adult guardianship. See: Sections 2, 3, 8 of the RAA. 
   • For example, the first Stockall factor which originally considered the adult’s wishes while “lucid” (see bullets above) could be altered as follows:  “Does the change sought reflect the adult’s current wishes, and are those current wishes reasonable? If not, does the change reflect the adult’s wishes while capable?”  We would then agree that this factor (in its amended form) ought to be a significant factor in most cases. In our view, this approach better respects the adult’s autonomy and dignity and is more legally correct, particularly where there has been no declaration of incapability by a court. 

A recent order of the BC Information and Privacy Commission reaffirmed that without a Representation Agreement (RA), a person will not be allowed to access the medical records of their spouse.  

In this case, a husband asked for all the medical records of his wife’s time at Peace Arch Hospital (PAH). He believed the Enduring Power of Attorney she made, appointing him, gave him the right to act on his wife’s behalf to receive her medical records. 

However, the adjudicator at the Privacy Commission said no. The adjudicator found that the husband did not have the authority to act for his wife to access her medical records under s. 4(1)(b) of the FIPPA Regulation. The reason was that the Enduring Power of Attorney only covered financial affairs and legal matters—not health care. The request was outside the authority of the husband, as his wife’s attorney. 

The case didn’t say whether the wife had a Representation Agreement (RA). If she did, and included the authority for health care, he likely would have been allowed to receive the full medical records. According to the law, someone with an RA has the right to the same records as the adult has rights to, as long as they are requesting those records on behalf of the adult in their capacity as representative, and they relate to the incapability of the adult, or an area of authority given under the RA. 

The case was unclear about the wife’s level of capability at the time the request for records was made by her husband using the Enduring Power of Attorney. Even if she was incapable of managing her health care and/or financial affairs on her own at that time, it would not have legally stopped her from making a Representation Agreement with health and personal care authorities under s.7 of the Representation Agreement Act (an RA7H+P). If she made an RA7H+P appointing her husband as representative, he likely would have been allowed to receive the full medical records. And of course, if she had learned about Representation Agreements in advance of any of this happening, she could have made a Section 9 Representation Agreement when she met the traditional capability requirements earlier in her life. 

What about the husband being a Temporary Substitute Decision Maker (TSDM) for his wife? Would he have access to the records in that role? It is true that if the wife did not have an RA for health care, the husband would be the wife’s first-ranked TSDM for health care matters. But a TSDM does not have the same rights to medical records as a Representative under an RA. A TSDM can only see the information they need to make the specific health decision before them. 

The takeaway: Do you want people you trust to support you in health care and personal care decision making when needed, or to make those decisions for you when you cannot? Would you want them to have access to your fulsome medical history to be able to make those decisions? If so, make a Representation Agreement (RA). 

You don’t need a lawyer or notary to make an RA! Nidus offers free RA forms and information to help you do it yourself. 

You might have concerns about a Representation Agreement (RA) — maybe about how it was made or how it’s being used. The law has rules to protect people in these situations. 

Safeguards When Making Section 7 Representation Agreements (RA7)

The Representation Agreement Act (RA Act) includes special protections for RA7s (generally made by adults who have cognitive difficulties and whose ability to ‘understand’ is in question).  

The broader definition of capability in the RA7 approach made some parties concerned about the potential for abuse, so the law includes built-in safeguards to help prevent abuse. These are checks and balances that make it harder for someone to misuse an RA7, especially for routine management of financial affairs.  

You can learn more about these safeguards in our fact sheet on the subject. It is also important to read about the RA7 approach to capability here.

Making a Complaint (Objection) – Section 30 of the RA Act

If you have concerns, you can make a formal complaint (called an objection) to the BC Public Guardian and Trustee (PGT) under section 30 of the RA Act. This process asks for a review or fix if something has gone wrong. 

In a recent case, the court confirmed that, except in very exceptional situations, people must first use this section 30 complaint process before going to court. In that case, the court refused to step in because the person hadn’t used the section 30 process first. 

Who Can Make an Objection (Complaint) and Why?  

Anyone who thinks something is wrong can report their concerns to the PGT under section 30 by making an “objection”. Reasons for an objection that are mentioned in the RA Act include: 

• the adult was not capable* of making or changing the RA at the time it was made or changed; 
• there was fraud, undue pressure, abuse, or neglect involved; 
• the representative is acting against the adult’s current wishes, values, beliefs or best interests;** 
• the agreement was not made or signed properly; or 
• the representative is not following a representative’s legal duties. 

The PGT can also start an investigation on its own if it believes something is wrong, including any of the above.  

*Note: the RA7 and Section 9 Representation Agreement (RA9) have different approaches to capability. Read about the RA7 approach here. 

**Note: The first legal duty of a representative is to follow the adult’s wishes and values. Representatives only act based on the adult’s best interests if their beliefs and values are not known. Read the ‘Role of a Representative’ fact sheet here.  

What Happens After an Objection (Complaint) Is Made? 

Once the PGT receives an objection (complaint), it reviews it. This is handled by their Assessment and Investigation Services team. They assume the adult was capable when the agreement was made unless there’s clear evidence they weren’t. 

After review, the PGT has many options – it may take any action including: 

• start an investigation;  
• go to court to: 
  • confirm a change or cancellation to the RA made by the adult, 
  • cancel all or part of the RA, 
  • fix problems with how the RA was signed, or 
  • appoint a monitor, or 
• recommend someone else go to court. 

Before doing anything major, such as beginning an investigation or a court application, the PGT tries the least intrusive options that are appropriate and effective for the adult. The PGT will work with the representative to correct problems and to make sure they understand their role and authority. It may also refer the issue to a designated agency (like a health authority) better able to assist.   

When Will the PGT Step In? 

The PGT is hesitant about stepping into adult’s privately made arrangements like RAs. It usually only investigates if: 

1. the adult may be unable to help themselves; 
2. there is specific, urgent or immediate need; and 
3. there is no other suitable person who has the authority or is willing to act on the adult’s behalf. 

That said, if the PGT does open an investigation, it has strong powers. It can compel the representative or others (e.g. banks, hospitals, etc.) to disclose documents and answer questions. But investigations can take time — sometimes over six months.  The PGT has protective powers it can exercise if there is urgent risk present in the meantime.  

Section 30 of the RA Act helps protect vulnerable adults by giving the PGT the power to review Representation Agreements and hold representatives accountable.  In addition, the courts have indicated this section 30 process should be followed before they will get involved in an RA arrangement. 

Need to make an Objection? 

If you think a Representation Agreement is being misused, you can contact the BC Public Guardian and Trustee (PGT) at the coordinates below:  

📞 Phone: 604-660-4507
📧 Email: AIS-PDS@trustee.bc.ca 

To celebrate Personal Planning Month, Nidus will be providing free presentations in person across the Lower Mainland and online, with screenings reaching audiences in Piers Island, Stewart, Lillooet, Squamish, Invermere, Rossland, Valemount, and more! Read our September Newsletter or visit our Events page for more details.

Wildfires are an active threat in BC.

Wildfire preparedness guides recommend preparing a copy of your emergency plan and copies of important documents, such as insurance papers. With the Nidus Registry, you can register copies of your legal documents, and other important documents such as emergency plans, medication lists, and insurance documents. This will ensure that you can easily access these important documents and information in an emergency. Watch our video below:

Nidus has partnered with the BC Association of Community Response Networks to provide Rack and Wallet Cards, as resource information and promotional materials available for order. The BCCRN grew out of the need to create an on-going, permanent provincial funding and support structure for the benefit of vulnerable adults who are experiencing (or at risk of experiencing) abuse, neglect, and self-neglect.

The Association provides small project funding, resources, materials, training, and support people to assist over 90 Community Response Networks.

Ordering New Rack Cards

To order a Rack Card or Wallet Card, visit the BC CRN website. Fill in the form and select your quantity under ‘Rack Cards’ or ‘Wallet Cards’, BC CRN & Nidus Personal Planning Rack/Wallet Cards. Please allow 4 weeks for delivery. Other Nidus resources can be found across our website.

Nidus has been receiving a number of inquiries about how Representation Agreements can be used to access the new Canadian Dental Care Plan.

Who can access the new Canadian Dental Care Plan?

The Canadian Dental Care Plan (CDCP) is a federal initiative that aims to make the cost of dental care more affordable for eligible Canadian residents. Applications are open for seniors aged 65 and over as well as adults with a valid federal Disability Tax Credit certificate for 2023.

What is the issue?

The application process allows a “delegate” to apply on the applicant’s behalf. The government website lists examples of documents that can list delegates, such as an Enduring Power of Attorney.

Section 7 Representation Agreements (RA7s) that include authorities for routine finances, such as a RA7ALL or RA7F+L, also give representatives the authority to obtain benefits or entitlements for the adult, including financial benefits.

For example, representatives have obtained Veteran benefits, the home owner grant, and Covid benefits. The CDCP would be a similar benefit. However, as RA7s are unique to BC, some federal front line staff for the dental plan applications may not be familiar with these documents.

What has Nidus done & what can you do?

Nidus has encouraged members of the public to keep combating misinformation – we know that Service Canada is aware of the RA7 at higher levels and has accepted them. Other federal agencies such as the Canada Revenue Agency have explicitly recognized Representation Agreements.

Some representatives have been able to apply directly online. Some representatives have reported success after trying different agents until they were able to find one who was educated on the RA7.

Nidus has spoken with multiple staff members at Service Canada to encourage them to update their procedures and training to educate all staff on the RA7 so that the public is not forced to take such extraordinary measures. However, it may take some time before changes to training are made. Until then, education and advocacy are key.

To see general tips for using the Section 7 Representation Agreement for Finances and Legal Matters, click here.